McCrystal v Commissioner of Police, NSW Police Force

Background to the complaints

1. In a report prepared as required by s 94A of the Act (the President's report), the President summarised the allegations made by Mrs McCrystal in respect of the first complaint: The Complainant [Mrs McCrystal] alleges sexual harassment from Inspector Davis and Superintendent Kopsias and vicariously her employer, the NSW Police Force as well as less favourable treatment by the NSW Police Force because of her sex. In summary, the Complainant alleges: (1) During the period of 21 May 2015 until 19 July 2016, the Complainant was sexually harassed by Inspector Davis in being subjected to frequent comments about her clothing. (2) On 21 May 2015, the Complainant was sexually harassed by Superintendent Kopsias in a management meeting (3) During the period of 21 May 2015 until 23 June 2015, the Complainant was subjected to a pattern of intimidating and bullying behaviour by her male colleague because of her sex including: … (4) On 22 June 2016, the complainant observed two staff members watching pornography in the office. (5) On 23 June 2015, the Complainant was subjected to verbal abuse and aggressive behaviour by a male colleague. (6) On 23 June 2015, the NSW Police Force management pressured her not to submit a formal complaint about the discrimination although she had formed the view that her managers were unable to curb her colleagues' discriminatory conduct. (References to documents referred to by the President are omitted.)
2. With respect to the victimisation complaint, the President noted that Mrs McCrystal alleged she was victimised by the Commissioner because she made the first complaint. The President described the allegations made by Mrs McCrystal in the following terms: Alleged Unlawful Conduct [T]he Complainant alleges that: (1) On 23 June 2015, she lodged a complaint of sex discrimination concerning an incident between herself and a male colleague and a pattern of behaviour wherein her colleague displayed "aggressive behaviour towards women" within the workplace. (2) On 26 July 2015, the Complainant submitted a complaint to the NSW Police Force in relation to several acts of harassment, bullying and victimisation. (3) On 24 November 2015, 30 November 2015, 1 December 2015 and 2 December 2015, the Complainant was excluded from training and development opportunities because of her discrimination complaints. (4) During the period of 24 November 2015 until 29 June 2017, the Complainant has not been afforded development opportunities such as acting up to higher roles, which she had previously performed. (5) During December 2015, the complainant was denied access to resources that she had previously had, that her colleagues had access to and which impeded her work performance. That several requests to rectify the access were not actioned by management. (6) On 21 January 2016, the Complainant was tasked with meaningless duties while all other staff performed more meaningful warrant compliance duties that she would usually perform and/or supervise. (7) On 3 March 2016, the Complainant was offered an opportunity to perform a new role in Stored Communications, which she accepted. She was subsequently advised that she was unsuccessful in securing the position as her application was not supported by management which included Superintendent Kopsias, Inspector Davis and her male colleague who … she had lodged a discrimination complaint against. (8) During May 2016, she was subject to an investigation into her conduct by the Surveillance Branch of the SSG Command including 3-4 hours of questioning over her work emails. (9) On 22 June 2016, the complainant reported two staff members openly watching pornography in the office. The Complainant alleges that her report was not properly investigated because of her previous complaints. (10) On 4 November 2016, 18 January 2017 and 30 January 2016, the complainant was medically cleared to return to her substantive role after a period of medical leave, however the NSW Police Force did not allow her to return to that role without clear reason. (11) On 30 April 2017, she was forcibly transferred to a Frontline _ general duties position at Marrickville Police Station contrary to medical advice of which the NSW Police Force was aware at the time with no right of appeal or reply.

Principles governing the exercise of the power to amend a complaint

1. Section 103 of the Act gives the Tribunal power to amend a complaint: 103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit.
2. In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]-[38].
3. The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred.
4. In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]: The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant: Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)). Whether the proposed amendment is futile because it seeks to pursue claims that are untenable. Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. Whether the proposed amendment raises any issue of joinder. Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred. Whether if refused/granted, any party might be prejudiced. Whether the party making the application is in default of previous orders.

Should the temporal scope of the first complaint be extended?

1. Mrs McCrystal submits that the power to amend the first complaint, by extending its temporal scope to include the period 1 January 2014 to 20 May 2015, should be exercised for these reasons.
2. First, the initiating complaint she lodged with the President on 1 February 2017 contained allegations of conduct by Messrs Kopsias and Davis said to have occurred in the period 1 January 2014 to 20 May 2015. These included the statement "I am unclear of specific dates but approximately prior to 2014 Kopisios had a conversation with me at TIB … where he openly stated that a female civilian IT technician … was a fat lesbian": the President's report at p 28. In relation to Inspector Stuart Davis, Mrs McCrystal alleged: "between 2014 and 2015 (approximately two year period) Inspector Stuart Davis of TIB would regularly make comments to me regarding the clothing I wore to work each day … there were other obvious sexual connotations in relation to the comments": President's report at p 21.
3. Second, at the time of making the complaints she was not legally represented and did not appreciate that some of the conduct that pre-dated 21 May 2015 might constitute sexual harassment and/or sex discrimination. It is for this reason, that in the pro forma complaint form, in answer to the question "when did the discrimination or harassment begin? …It began on…", she wrote: "21 May 2015".
4. Third, she asserts that the respondents would not suffer any significant prejudice if the temporal scope of the first complaint is extended to include conduct alleged to have occurred between 1 January 2014 and 20 May 2015.
5. The respondents contend that the power to amend the first complaint should not be exercised because, first, the period the subject of the proposed amendment is significantly out of time. Second, the allegations made about Messrs Davis and Kopsias are unparticularised. Third, the most likely reason Mrs McCrystal wrote in the first complaint that the conduct commenced in May 2015 is because she held the genuine belief that that was the case. Fourth, amending the first complaint in the manner proposed would inevitably lengthen the hearing by introducing fresh evidence about conduct alleged to have occurred over an 18 month period.

Consideration

1. I have decided not to exercise the power to amend the first complaint, primarily because the allegations of sex harassment said to have occurred between 1 January 2014 and 20 May 2015, are not particularised in either the initiating complaint, Points of Claim nor the detailed affidavits sworn and filed by Mrs McCrystal in these proceedings.
2. In reaching this conclusion, I have taken into account that the statutory provisions governing the making of a complaint to the President do not require the complainant to particularise the alleged conduct said to amount to a contravention of the Act. The only requirement is that the complaint be in writing and lodged with the President: ss 89, 89A.
3. Nonetheless, in the context of an application to amend a complaint made at this stage of the proceedings - namely, after two case conferences and a mediation, and the passing of the deadline to provide Points of Claim and supporting evidence - the extent to which the alleged conduct has been identified and particularised, while not determinative, is nonetheless relevant. In contrast to the proposed amendments to the victimisation complaint, the Points of Claim do not identify the alleged conduct said to amount to sexual harassment and/or sex discrimination by reference to either date or identity of the alleged perpetrator. See Points of Claim at [3].
4. The Tribunal is not a court of strict pleading. It is required to proceed with as little formality as the circumstances permit and to act according to the substantial merits of the case without regard to technicalities or legal forms: s 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Nonetheless, the application to amend the complaint is not assisted by this lack of particularity. Coupled with the age of the alleged conduct and the resultant prejudice each respondent will probably suffer, having to answer unparticularised allegations said to have occurred over four years ago, I have decided that the balance of considerations do not favour exercising the power to amend the first complaint.

Should the temporal scope of the victimisation complaint be extended?

1. Mrs McCrystal urges the Tribunal to exercise the power to amend the victimisation complaint by extending its temporal scope to include the period 29 June 2017 to date (the proposed extended period). The period of the victimisation complaint referred by the President was 24 November 2015 to 29 June 2017.
2. The alleged conduct said to fall within the proposed extended period and amount to victimisation within the meaning of s 50 of the Act, is: 1. Mrs McCrystal being transferred to nine different temporary workplaces since June 2017 (the first victimisation allegation): Points of Claim at [15]. 2. Mrs McCrystal being notified of the Commissioner's intention to commence the process of terminating her employment with the NSW Police Force (the second victimisation allegation): Points of Claim at [16].
3. Mrs McCrystal contends that if, she were to lodge a fresh complaint with the Board in respect of the above allegations, this would inevitably delay the determination of the complaints that were referred by the President in July 2018 (the current complaints) or necessitate a second hearing. She argues that, if she were to lodge a fresh complaint, the options available to the Tribunal would be either to delay the determination of the current complaints or to proceed to hear the current complaints and conduct a second hearing if or when the President referred the fresh complaint. She asserts that the first of these options would result in delay; the second in additional costs being incurred by the parties.
4. The Commissioner objects to the proposed amendment. He asserts that the proposed amended complaints have limited prospects of success. In addition, he asserts that if the complaint is amended in this manner, the facts and issues in dispute will be significantly expanded, with resulting prejudice to the Commissioner and waste of the Tribunal's resources.

Consideration

1. The discretion to amend a complaint is not one that should be exercised lightly. The exercise of the power to amend a complaint inevitably means that the two-tier complaint handling scheme established by Part 9 of the Act will be by-passed. Nonetheless, for the reasons that follow I have decided that in the circumstances of this case, it is appropriate to exercise the power to amend the victimisation complaint by including the second, but not the first, victimisation allegation.
2. First, unlike the alleged conduct the subject of the proposed amendment to the first complaint, the conduct the subject of the first vilification allegation is clearly identified. It consists of nine discrete acts alleged to have occurred over a 15 month period: see, Points of Claim at [15].
3. Second, the period which is the subject of the alleged conduct, June 2017 to September 2018, is relatively recent. As a result, in answering the allegations, the Commissioner will not be required to undertake the time consuming and expensive exercise of trawling through historic documents and obtaining statements from witnesses whose recollections of past events may have faded because of the passage of time.
4. Third, I am not persuaded that the first victimisation amendment in untenable. The Commissioner is correct that the Points of Claim fail to address a critical element necessary to establish a contravention of s 50 of the Act - namely, whether at least one of the 'real', 'genuine' or 'true' reasons the Commissioner subjected Mrs McCrystal to the purported "detriment" of being transferred out of TIB and being moved to nine different temporary workplaces, was because she made the first complaint (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]). Nonetheless, at this stage of the proceedings, it could not be said that there is no evidence, or no evidence capable of supporting the inference, that Mrs McCrystal was subjected to the purported detriment because she made the first complaint.
5. Finally, and in my view significantly, the proposed amendment will avoid the possibility of a fresh complaint being made and referred to the Tribunal for determination. That course would either delay the determination of the current complaints or necessitate a second hearing at some later date. Neither outcome, in my view, would be consistent with the guiding principle of the NCAT Act: to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1).
6. For these reasons I have decided to exercise the power conferred by s 103 of the Act to amend the victimisation complaint by including the first victimisation allegation. However, for the reasons discussed below I have decided not to include the second victimisation allegation.

Should the victimisation complaint be amended to add an allegation of discrimination on the ground of disability in the area of employment?

1. Mrs McCrystal urges the Tribunal to amend the victimisation complaint by adding an allegation of discrimination on the ground of disability. The conduct the subject of this proposed amendment is described in the Points of Claim as follows: 1. On 21 January 2016, after returning from leave, the applicant was not returned to her usual work duties but was instead given menial tasks to perform: Points of Claim [9] (first disability discrimination allegation). 2. Since June 2016 the applicant has not been returned to her pre-injury duties but has rather been moved to 9 different workplaces: Points of Claim [10] (second disability discrimination allegation). 3. In September 2018, the Respondent informed the Applicant that it intended to commence the process of medically discharging her: Points of Claim [11] (third disability discrimination allegation ).

Statutory framework

1. Section 49D(2) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of disability: (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment.
2. Discrimination on the ground of disability is defined by s 49B of the Act. I understand Mrs McCrystal to cast the complaint as one of so-called "direct discrimination" as defined by s 49B(1).
3. For the claim of discrimination on the ground of disability to be substantiated, Mrs McCrystal must establish: 1. That she has, or is thought to have, a disability: ss 4 and 49A of the Act. 2. That the conduct about which she complains falls within s 49D(2) of the Act. 3. That in respect of that conduct, the Commissioner treated her less favourably than he treated, or would have treated, a person without her disability, real or presumed, in the same circumstances or circumstances that were not materially different (less favourable treatment). 4. That one of the reasons for any less favourable treatment was Mrs McCrystal's disability or presumed disability (causation).

The parties' contention

1. The primary contention advanced by Mrs McCrystal in support of this amendment is that the allegations of discrimination on the ground of disability are underpinned by the same factual matrix as the victimisation allegations listed at [13], [15], [16] of the Points of Claim. She asserts that the proposed amendment involves conduct relating to the same time period, players and facts as the victimisation complaint. She contends that the resolution of the claim of disability discrimination will largely turn on legal argument, and therefore amending the complaint is unlikely to require the parties to obtain additional evidence, thereby increasing the length of the hearing or result in additional costs being incurred. Further, she rejects the proposition advanced by the Commissioner that there are no reasonable prospects that the claim of disability discrimination will be substantiated. She repeats the submission made in support of the application to amend the temporal scope of the victimisation complaint, that is, amending the complaint avoids the risk of delay and/or duplication of proceedings.
2. The Commissioner opposes the application. He contends, first, that the first and second allegations of disability discrimination have limited prospects of success. He points out that the Points of Claim do not disclose the basis of the claim that by not being returned to her original position, Mrs McCrystal was treated less favourably than another employee who did not suffer from her disability, presumably depression. The Commissioner points out that s 49B(2) of the Act requires the treatment afforded Mrs McCrystal to be compared with the treatment that was or is likely to be afforded to an employee without depression in comparable circumstances to Mrs McCrystal, relevantly: 1. Being subject to a series of significant restrictions as to hours worked, supervisory and training duty, contact with her supervisors and managers. 2. Regarding her original workplace as a "hostile and toxic environment" which caused her to sustain a serious and persistent psychological injury. 3. Having a broken relationship with her former commanding officers, and insisting that they not be involved in managing her. 4. Alleging that her former managers had engaged in serious misconduct.
3. The Commission contends that there is little prospect of Mrs McCrystal being able to demonstrate in respect of the first and second allegations of disability discrimination, that another employee, in circumstances not materially different to hers, would have been returned to their previous position. He asserts that, given that that decision was taken in compliance with the restrictions imposed by her medical practitioners, the decision not to return Mrs McCrystal to her former position at TIB could not be said to constitute less favourable treatment..
4. Second, the Commissioner rejects the contention that there is a significant overlap between the alleged conduct the subject of the proposed disability discrimination claim and the victimisation complaint. While conceding that there is some factual overlap, the Commissioner asserts that the legal issues are nonetheless separate and distinct therefore would extend the length of proceedings and result in additional costs being incurred.
5. Third, the Commissioner asserts that while it is not possible to identify with precision the extent of any prejudice to the Commissioner if the complaint is amended at this stage, given the age of the allegations and the requirement to obtain additional evidence, it is likely to be considerable.
6. Fourth, he contends that, other than to say that until recently she was self-represented, Mrs McCrystal has failed to provide a cogent explanation for not including the disability discrimination allegations when she lodged the victimisation complaint with the President. The Commissioner contends that whether a party is, or is not, legally represented is not a relevant consideration in the exercise of the power to amend a complaint. Furthermore, he asserts whilst the initiating complaint lodged by Mrs McCrystal was characterised by a "serious lack of objectivity", it demonstrated a sound working knowledge of discrimination law.
7. Fifth, the Commissioner asserts that the third disability discrimination allegation is entirely misconceived.

Consideration

1. I accept the proposition advanced by the Commissioner that Mrs McCrystal's failure to address the element of less favourable treatment in the Points of Claim weighs against the exercise of the discretion to amend the victimisation complaint in the manner she proposes. That failure makes the task of evaluating whether the claim is tenable difficult. In addition, it makes it difficult to assess the conflicting claims made by the parties about the resultant prejudice likely to be caused, if the amendment is allowed.
2. I agree with the Commissioner that Mrs McCrystal overstates the extent of overlap between the claims of victimisation and disability discrimination. While some overlap in the facts, the legal issues are discrete.
3. Nonetheless, while the considerations are finely balanced I have decided to exercise the power to amend the complaint, primarily because of the real risk that otherwise a fresh complaint will be made and subsequently referred to the Tribunal, with resultant delay, duplication and/or additional costs. Relevantly, costs are only available in this jurisdiction where "special circumstances" are established.
4. For these reasons, I have decided to exercise the power to amend the victimisation complaint by including the first and second disability discrimination allegation. However, for the reasons discussed below I have decided not to amend that complaint by including the third disability discrimination allegation.

Should orders be made under s 105 of the Act?

1. In the application lodged with the Tribunal on 26 October 2018, Mrs McCrystal sought the following orders under s 105 of the Act, pending determination of the complaints: 1. That the Commissioner return her to her role at the TIB (Proposed Interim Order 1). 2. That the Commissioner not take any steps that would result in her medical retirement or removal from the New South Wales Police Force (NSWPF) (Proposed Interim Order 2).
2. At the hearing to determine this application, Mrs McCrystal abandoned the application in respect of Proposed Interim Order 2 because of a change in circumstances which meant that the apprehended medical retirement would not eventuate. While no longer relevant to the application for interim orders, the background to Proposed Interim Order 2 is nonetheless relevant to my decision to refuse to exercise the power to amend the victimisation complaint by including the second victimisation allegation and the third disability discrimination allegation. For that reason, I summarise below the background to the proposed interim order.
3. After being certified by her treating doctor in September 2017 as never being able to return to General Duties, Mrs McCrystal was referred to the Deployment Unit of the NSWPF. The role of the Deployment Unit is to assist employees who have been assessed as being unable to return to their pre-injury duties in the foreseeable future because of illness or injury. Over the ensuing 13 months, Mrs McCrystal was unable to find "suitable employment" that is, employment that could accommodate the restrictions imposed by her treating doctor. Had by 9 November 2018, she remained unfit to return to her pre-injury duties or unable to find suitable employment within the NSWPF, the Commissioner would have been entitled to commence a process, leading to Mrs McCrystal's medical discharge from the NSWPF.
4. However, at the eleventh hour, Mrs McCrystal's treating psychiatrist certified that, as of 24 October 2018, she had some capacity for work. In addition, he certified that he expected that she will be certified as wholly fit for pre-injury duties at the next review. It is agreed that, as a consequence of the treating doctor's revised opinion, it would not be open to the Commissioner to commence the medical discharge process.
5. Given that the apprehended medical discharge process did not commence, it is unlikely that Mrs McCrystal could establish the elements necessary to substantiate a complaint of victimisation or disability discrimination. Among other things, it is unlikely that she would be able to establish that she had been subjected to a "detriment" within the meaning of ss 50 and/or 49D(2)(d) of the Act. For this reason, I have decided not to amend the victimisation complaint to include the second victimisation and the third disability discrimination allegations.

Should orders be made requiring the Commissioner to return Mrs McCrystal to her role at the TIB pending the determination of the complaints?

1. At the hearing, I directed the parties to confer to consider whether agreement could be reached on the arrangements surrounding Mrs McCrystal's employment, pending the determination of the complaints. On 14 November 2018, Mrs McCrystal notified the Tribunal that the parties had been unable to reach agreement and pressed for Proposed Interim Order 2. The Commissioner opposes that order being made.

Statutory framework

1. Section 105 gives the Tribunal power to make interim orders: 105 Interim orders (1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order: (a) to preserve the status quo between the parties to the complaint, or (b) to preserve the rights of the parties to the complaint, or (c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint.
2. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63, an Appeal Panel of the ADT wrote at [18]: In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as: . . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.
3. The Appeal Panel went on to note at [12], that while the power of the Tribunal to grant interim relief is not subject to any express limitation, the principles applicable to interlocutory injunctions provide useful guidance. Those principles are, first, whether the plaintiff has made out a prima facie case (in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief); and, secondly whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46.

Background

1. Between 2008 and 2016 Mrs McCrystal held a position with the TIB. On 3 July 2015, her treating doctor certified her as suffering work-related stress as a result of excessive workload and verbal abuse by a colleague and being totally unfit for work until 17 July 2015.
2. On 25 July 2015, Mrs McCrystal made a formal complaint to the Commissioner alleging among other things that she had been subjected to sexual harassment by Messrs Kopsiais and Davis.
3. On 11 September 2015, Mrs McCrystal returned to work subject to medical restrictions. On 8 October 2015, she was certified unfit for work because of work-related stress. She returned to work on 12 October 2015 after being certified fit with restrictions. On 7 December 2015, Mrs McCrystal was again certified as being unfit for work. In January 2016 she returned to work with restrictions. On 1 August 2016, she was certified unfit to work because of major depression and again took leave. In November 2016 she was certified fit to work subject to restrictions.
4. In late 2016, the Commissioner determined that Mrs McCrystal be subjected to a management initiated transfer out of TIB. Mrs McCrystal opposed that decisions.
5. In September 2017 Mrs McCrystal was certified by her treating doctor as permanently unfit for operational duties.
6. Since June 2017 Mrs McCrystal has been transferred to nine different workplaces within the NSWPF. The shortest placement was for three days (Miranda Police Station), the longest two months (Motorcycle Response Group).

Contentions of the parties

1. Mrs McCrystal argues that the power to make Proposed Interim Order 1 should be exercised because since June 2017 she has been subjected to numerous transfers of short duration. She asserts this is both unreasonable and potentially puts her health at risk.
2. She submits that the assertion made by the Commissioner, that a return to the TIB is likely to damage her health, is against the weight of medical evidence. She points to the opinion of consultant psychiatrist Dr Peter Young who, in a report prepared at the request of the NSWPF dated 1 February 2017, wrote that in his opinion Mrs McCrystal was currently fit to perform the "inherent requirements" of her pre-injury position. He wrote that it is likely that a return to that role would "present some stress" and if Mrs McCrystal were to return she should continue to be supported by her treating psychiatrist, at least for the first three months.
3. Mrs McCrystal points out that this opinion is consistent with that expressed by her treating psychiatrist Dr Alex Pilsky who, in a report dated 18 January 2017, wrote that in his opinion she was fit to return to her pre-injury position at the TIB. He acknowledged that while Mrs McCrystal's brief return to the TIB six months earlier had triggered a "further injury recurrence" he pointed out that since that time Mrs McCrystal's condition had significantly improved.
4. In addition, Mrs McCrystal cites Dr Pilsky's more recent opinion that, as at 24 October 2018, she has some capacity for work and is expected to soon be able to undertake her pre-injury duties.
5. Mrs McCrystal asserts that because of personnel changes within the TIB she would not have direct contact with those managers whom she alleged contributed to her work-related stress. That assertion she contends is consistent with the history recorded by Dr Young in his report of 1 February 2017 and the statement made by Assistant Commissioner Lanyon in an email sent to her on 20 February 2017 explaining why he had initiated her transfer from the TIB: [W]hile I am able to provide a safe workplace, I consider your presence at the TIB has the potential to create an increased risk to both your safety and well-being as well as to other employees within the TIB.
6. The Commissioner urges the Tribunal not to make Proposed Interim Order 1. He claims that in circumstances where Mrs McCrystal has consistently and repeatedly alleged that she sustained a significant psychological injury because of the "hostile and toxic environment" at the TIB, where she has insisted that some of her former TIB managers play no role in the management of her employment, it would be entirely inappropriate for Mrs McCrystal to return to the TIB on an interim basis.
7. In addition, the Commissioner contends that there is no evidence to support the proposition that it is likely that Mrs McCrystal will suffer irreparable harm if she continues to work in short term placements outside the TIB.

Decision

1. The contention advanced by Mrs McCrystal that there is a real and material risk that her mental condition will deteriorate if she continues to be subjected to a series of short term placements, while unsupported by medical evidence, is not implausible. Since the onset of major depression in 2016 she has been under the care of a psychiatrist. Given those circumstances, the claim that being repeatedly moved to new workplaces is likely to make Mrs McCrystal anxious and may exacerbate her depression is plausible. Nonetheless, absent better evidence I am not persuaded that there is a real and material risk that the continuation of this practice, pending the determination of the complaints, is likely to be injurious to Mrs McCrystal's mental health such that it warrants the exercise of the power to make an order under s 105.
2. But, in any event even if the available evidence supported the exercise of the power to make an interim order, for the following reasons, in my view it would be inappropriate to make an order in the form of Proposed Interim Order 1.
3. Since 2016, the parties have been in dispute about many matters, including whether Mrs McCrystal should be permitted to return to the TIB. In these proceedings, Mrs McCrystal asserts that her depression is unlikely to be aggravated if she returns to work at the TIB. The Commissioner disagrees, relying primarily on the history of a series of unsuccessful attempts to return Mrs McCrystal to the TIB in late 2016 and the resultant exacerbation of her condition.
4. On the available material I am not comfortably satisfied that Mrs McCrystal's mental health would not deteriorate if she were to now return to the TIB. While the recent certificate issued by Mrs McCrystal's treating psychiatrist is consistent with her contention that she is fit to return to the TIB, it does not specifically address the issue. In his 2017 report Dr Young states that in his view Mrs McCrystal is fit to return to work at the TIB but does not disclose the assumptions he made about the nature of the work environment to which Mrs McCrystal is likely to return. Given the conflicting assertions made by the parties about the likelihood that at the TIB Mrs McCrystal will be exposed to the very people she alleges subjected her to bullying and harassment and contributed to what she perceived to be a toxic work environment and to her becoming unwell, this is of some significance.
5. For these reasons, in my view it would be inappropriate to make Proposed Order 1. I note that that form of order is not the only order that could be made under s 105. It is open to Mrs McCrystal to make a further application for interim orders. To avoid that outcome and the consequent costs, I encourage the parties, as I did at the last hearing, to explore whether agreement could be reached about Mrs McCrystal's place of employment until the determination of the complaints.
6. The amended complaints must proceed to hearing without further delay.

Orders 1. The complaint referred by the President of the Anti-Discrimination Board to NCAT on 24 July 2018 is amended by: 1. extending the temporal scope of the complaint lodged by Mrs McCrystal with the President of the Anti-Discrimination Board on 29 June 2017 alleging victimisation to include the period 29 June 2017 to 7 November 2018 in respect of the allegations listed in the Points of Claim at [13],[14]. 2. adding to that complaint an allegation of discrimination on the ground of disability under s 49D(2) of the Anti-Discrimination Act 1977 (NSW) for the period 21 January 2016 to 7 November 2018, in respect of the allegations listed in the Points of Claim at [9],[10]. 1. The balance of the application to amend the complaints referred by the President of the Anti-Discrimination Board to NCAT on 24 July 2018, is refused. 2. The application for interim orders is refused. 3. By 11 Februray 2019, Mrs McCrystal must file and serve amended Points of Claim to reflect Order (1) above and any further evidence in support. 4. By 22 March 2019, the respondents must file and serve Points of Defence and evidence in support. 5. By 1 April 2019, Mrs McCrystal must file and serve any evidence in reply. 6. The matter is listed for directions (15 minutes) on 26 March 2019 at 2pm to list the matter for hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2018